Additional Rules and Audit Process for Direct Medical Experts Survey - Analysis and Government Response
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Additional Rules and Audit Process for Direct Medical Experts Survey Analysis and Government Response FEBRUARY 2021
Additional Rules and Audit Process for Direct Medical Experts
Contents
Introduction 2
Overall Statistical Analysis 3
Section 1: Questions on New Rules 4
Section 2: Questions on opting-in and additional comments 11
Section 3: Next Steps 13
Annex A: Rules specific to DMEs authorised to accept instructions from
unrepresented claimants 14
Contact Details 19
1Additional Rules and Audit Process for Direct Medical Experts
Introduction
1. The Government remains committed to the provision of good quality medical evidence,
where it is required to support road traffic accident (RTA) related personal injury claims
made by both represented and unrepresented claimants. The current system enables
claimant solicitors to obtain medical reports in support of low value soft-tissue injury
claims from medical reporting organisations (MROs) and direct medical experts
(DMEs) via use of the MedCo system.
2. Following the implementation of the whiplash reforms, MedCo will be extended to cover
all RTA related claims valued up to the new small claims track limit of £5,000. To
provide the necessary reassurance that DMEs who opt-in to provide medical reports to
unrepresented claimants have appropriate systems and procedures in place, MoJ has
worked closely with MedCo to develop new rules for experts undertaking work in this
area.
3. These rules have been developed to ensure that DMEs have the resources and
consumer protection policies and procedures in place to provide unrepresented
claimants who will have expectations of a good quality level of service. These rules will
ensure that DMEs who choose to opt-in have sufficient resources, processes and
capacity to deal with the volume of instructions they choose to accept through the new
Official Injury Claims1 service when it becomes operational on 31 May 2021.
4. A short, targeted survey was held between 16 March and 1 April 2020 to seek
stakeholder views on these changes. This survey was specifically aimed at DMEs, but
responses were also welcomed from other interested stakeholders including from
indirect medical experts (IMEs) and MROs. The purpose of this document is to provide
an analysis of the responses received to the DME rules survey and to also inform
stakeholders of the resulting Government actions and next steps.
5. A similar but separate survey for MROs on revisions to the qualifying criteria and
declaration of financial links has also been undertaken, and copies of this survey and
response document can be found here:
https://www.gov.uk/government/publications/medco-qualifying-criteria-stakeholder-
engagement-exercise
MINISTRY OF JUSTICE
FEBRUARY 2021
1 https://www.officialinjuryclaim.org.uk/
2Additional Rules and Audit Process for Direct Medical Experts
Overall Statistical Analysis
In total, 117 stakeholders completed either a full2 (99) or partial3 (18) survey response. For
the purpose of this analysis, a data cleanse process has been applied with duplicate 4 and
blank5 responses removed. In total 96 complete and 2 partial responses have been
analysed which were received from the following:
• DMEs = 81
• DME/IMEs = 5
• IMEs= 2
• Tier 1 MROs = 1
• Representative bodies = 1
• Other = 8
The Association of Medical Reporting Organisations (AMRO) indicated their response was
on behalf of all Tier 1 MROs. However, one Tier 1 MRO did submit an individual response
which differs in several places from the AMRO response and this has been reflected in the
analysis where necessary.
The following section of this response provides an analysis of the responses to each
question asked in this survey, along with information on any Government action arising
from the feedback provided.
2 Full responses are those where respondents have completed all questions included in the survey.
3 Partial responses are those where the respondent only filled in some, but not all of the survey.
4 Duplicate responses occur where the same respondent fills in the survey on more than one occasion, where this has happened the
most complete response has been retained.
5 Blank responses are those where a respondent has merely clicked through all the questions without inputting any data.
3Additional Rules and Audit Process for Direct Medical Experts
Section 1: Questions on New Rules
Question 1: Rule 1 is designed to ensure that DMEs and their key staff are ‘fit and proper’
people who are experienced, competent and qualified to offer services to, and interact with,
unrepresented claimants. Do you agree with this rule and is it sufficient for this purpose or
should there be other requirements considered (please explain your reasoning)?
Analysis of responses: 98 responses were received in response to this question, with 92
respondents agreeing with the revision (76 x DMEs; 5 x DME/IME; 2 x IME; 1 x
representative body; and 8 x other) and 6 disagreeing (1 X T1 MRO and 5 x DMEs).
Summary of comments: Most respondents who commented noted that the proposed rule
was sufficient and appropriate to provide reassurance in relation to DMEs and their staff
who opt to provide services to unrepresented claimants. Other stakeholders suggested
that only experienced experts should be included, and that additional checks are not
required as medical experts are already subject to similar scrutiny by professional bodies
including the General Medical Council (GMC) and the Health Care Professional Council
(HCPC). It was also noted that directors are also already subject to the fit and proper
persons requirements in the Health and Social Care Act 2012 (HSCA).
Among those that opposed the rule, it was suggested that DMEs should be subject to all
the same standards that MROs must meet through the qualifying criteria including
Disclosure and Baring Service (DBS) checks. Other responses focused on additional
requirements or stressed the need for DMEs to provide copies of their most recent NHS
appraisals or feedback from unbiased external agencies.
Government Action: The rule and supporting rationale will be clarified in relation to
employee qualifications. MoJ has also considered the points made in relation to
experienced experts and that additional checks are not required but, deems the ‘Fit
and Proper’ test as drafted is the most appropriate way to provide reassurance and
assess the suitability of DMEs and their staff to deal with unrepresented claimants.
The point made in relation to qualifying criteria is noted, but these will not be extended
to DMEs undertaking unrepresented claimant work as this would be too restrictive.
However, we do agree with the suggestion that DMEs undertaking unrepresented
claimant work should undergo a DBS check. Therefore, the DBS basic check will be
made mandatory and this requirement will be added to the new rule and we also
recommend that an enhanced DBS rating should be considered as best practice6.
6 https://dbscheckonline.org.uk/which-dbs-check
4Additional Rules and Audit Process for Direct Medical Experts
Question 2: Rule 2 requires DMEs to complete both a face to face audit interview with the
MedCo Audit Team and the new Accreditation Module on dealing with unrepresented
claimants. Do you agree that this rule is sufficient for the purpose of testing a DME’s
capacity to provide these reports or should there be another way for DMEs to demonstrate
that they can provide an acceptable level of service to unrepresented claimants (please
explain your reasoning)?
Analysis of responses: 98 responses were received in response to this question, with 71
respondents agreeing that an audit interview and accreditation module were sufficient to
demonstrate an acceptable level of service (60 x DMEs; 5 x DME/IME; 1 x IME; 5 x others)
and 27 disagreeing (1 x T1 MRO; 21 x DMEs; 1 x IME; 1 x representative body; and 3 x
others).
Summary of comments: Respondents generally felt that the use of an audit interview,
supported by a further accreditation module was a good idea. It was noted that advance
notice of the audit requirements and accreditation module would be helpful. Of those
opposed, most suggested that an audit interview would be too onerous or cumbersome.
Some respondents queried the need for DMEs who already produce whiplash medical
reports to undergo this new module arguing that their experience to date should be
adequate or that random audits of reports or a multiple-source questionnaire was enough.
There was also some misunderstanding as to the purpose of question 2. It was apparent
from the comments received that the audit interview requirement was being interpreted by
some respondents as relating to medical report quality. This is incorrect, as the purpose of
this question was to seek views on the process for ensuring DMEs have resources,
systems and staff in place to deal with the specific challenges arising from processing
claims made by unrepresented claimants not to consider the quality of their reports.
Many responses both in favour and against the proposed rule also focussed on the issue
of ‘face to face’ interviews and asked about video meetings instead. It should be noted that
the use of phrase ‘face to face’ was to indicate a conversation between the DME and the
audit team and does not relate to how that interview shall take place (which will need to be
in a fully Covid-19 compliant way).
Government Action: Having considered the responses provided to Question 2, we
have decided that the proposed rule is appropriate, and this will be implemented as
drafted. We will however, continue to work closely with MedCo to ensure that DMEs
opting in to this process receive adequate notice, support and documentation to
prepare for both the additional Accreditation module and the audit interview process.
5Additional Rules and Audit Process for Direct Medical Experts
Question 3: MedCo is currently developing the new Accreditation Module for DMEs which
will reflect the requirements included in these Rules. Are there any specific points or
issues that you think MedCo should consider including in this new module (please explain
your reasoning)?
Analysis of responses: 46 respondents provided comments to consider in relation to the
accreditation module as suggested in Question 3 (1 x T1 MRO; 3 x DME/IME; 37 x DMEs;
1 x representative body; 4 x others).
Summary of comments: The key suggestions made for consideration were:
• Conflict handling and a detailed complaints procedure;
• Information security and specific DPA/GDPR training;
• Information on the ethical considerations of dealing with unrepresented
claimants to support training for admin staff;
• Information on the payment process for unrepresented claimants;
• Use of electronic booking software and on the importance of flexible
appointment scheduling;
• A step by step guide to handling unrepresented claimants and example
correspondence;
• Information on how to explain the claims process to unrepresented claimants;
• Dealing with recommendations for additional medical reports;
• How to give effective feedback and dealing with requests to amend reports;
• Information on the range of injuries to be assessed;
• Information on the new legal process, including on liability issues; and
• Qualifying criteria similar to that applied to MROs should also apply to DMEs to
ensure that evidence of compliance is kept and is monitored over time.
Government Action: We will continue to work closely with MedCo to develop a new
accreditation module which will support DMEs opting in to supply medical reports to
unrepresented claimants, with full details of all suggestions made passed on to
MedCo for consideration. As mentioned in response to Q1, however, the suggestion
that MRO qualifying criteria be applied to DMEs will not be pursued.
6Additional Rules and Audit Process for Direct Medical Experts
Question 4: Rule 3 relates to the responsibilities a DME has to comply with in relation to
data protection legislation, including the recently introduced General Data Protection
Regulation requirements. Would further explanatory material and/or links to information
about data protection be helpful (please explain your reasoning)?
Analysis of responses: 97 responses were received in response to this question, with 59
respondents agreeing with the revision (1 x T1 MRO; 5 x DME/IME; 2 x IME; 47 x DMEs;
and 4 x others) and 38 disagreeing (34 x DMEs; 1 x representative body; 3 x others)
Summary of comments: Of those respondents in favour the majority agreed that
additional information and support of this challenging area would be welcome, especially
for their key staff. There were also comments relating to the need for clear standards of
what was expected by MedCo to ensure compliance, and there was support for the GDPR
accreditation module.
Of those opposed to the provision of additional information the comments predominately
stated that DMEs already knew all about confidentiality and GDPR and such additional
information was not necessary. As above, there was also a call for clear examples of
‘realistic and achievable’ daily processes DMEs would need to comply with. In addition,
one respondent contended that DMEs should face the same requirements as MROs and
their staff be fully audited on their understanding of, and compliance with the GDPR
requirements.
Government Action: The rule will be implemented as drafted with the addition of
further sources of information on GDPR appropriate to a wide range of DMEs. MoJ
also will discuss with MedCo what additional guidance can be provided in this area in
advance of face to face audit interviews for DMEs wishing to undertake work with
unrepresented claimants.
Question 5: Rule 4 is drafted to provide reassurance that the DME selected by
unrepresented (including vulnerable) claimants has effective, well-run systems, with
sufficient experience and customer focussed processes to handle their requirements with
courtesy, tact and sensitivity. Do you agree that this rule is sufficient for this purpose or
should there be additional requirements (please explain your reasoning)?
Analysis of responses: 97 responses were received in response to this question, with 89
respondents agreeing with the revision (1 x T1 MRO; 5 x DME/IME; 1 x IME; 75 x DMEs;
and 7 x others) and 8 disagreeing (1 x IME; 6 x DMEs; and 1 x representative body).
7Additional Rules and Audit Process for Direct Medical Experts
Summary of comments: There was strong support for Rule 4 and stakeholders
understood the importance of the rule. Respondents were generally satisfied that the rule
was enough to provide reassurance on customer focused processes.
Some DMEs were confident that their current systems placed customers first, while others
acknowledged that they would need to make changes to their current systems to adhere to
the rule. It was noted that staff would require training and that if this was adequate then
experience was less important. It was also suggested that there needs to be a balance
here and that unrepresented claimants must be made aware that reports are impartial and
that they can’t just ask for a more favourable report.
Comments opposed to the draft rule suggested that without proper service level
agreements (SLAs), such as those MROs have, it would be difficult to test compliance with
this rule. The use of such SLAs would ensure all claimants received the same level of
service irrespective of their chosen DME. Documented lists to demonstrate clear
processes and audit interviews with staff were also suggested.
Government Action: Having considered the points made in response to question 5
we have decided no further amendment is required to rule 4. The Government will
work with MedCo to ensure there is sufficient clarity included in relation to measures
in any MedCo guidance produced in support of this rule. The point made in relation to
SLAs is noted and further consideration will be given to this issue. We note the
concerns raised in relation to unrepresented claimant expectations and we will ensure
that users of the new Official Injury Claim service are informed of the role of a medical
report in supporting the court and that while they do have the right to ask for
amendments to be made to correct any factual inaccuracies, they cannot ask an
expert to change their professional opinion.
Question 6: Rule 5 tests a DMEs back office capacity and ensures that they have
sufficient resources, processes and customer service systems to interact with, and deliver
an effective service to, unrepresented claimants. Do you agree that this rule is sufficient for
the purpose of testing a DME’s systems or should there be another way for DMEs to
demonstrate that they can provide an acceptable level of service to unrepresented
claimants (please explain your reasoning)?
Analysis of responses: 95 responses were received in response to this question, with 81
respondents agreeing with the revision (1 x T1 MROs; 68 x DMEs; 4 x DME/IME; 2 x IME;
and 6 x other) and 14 disagreeing (12 x DMEs; 1 x DME/IME; and 1 x representative
body).
8Additional Rules and Audit Process for Direct Medical Experts
Summary of comments: There was general support for the rule with respondents noting
that it was important for a DME to be able to demonstrate they had sufficient operational
support available to deal with enquiries and appointments. However, it was also noted that
the availability of a variety of communication resources was also important in ensuring
accessible contacts could be maintained with unrepresented claimants. Of those opposed,
respondents noted that a DMEs experience should be taken into account and that
customer surveys were likely to be a better measure of customer satisfaction. It was again
suggested that the rule was subjective and that DMEs should be subject to SLAs similar to
those applicable to MROs.
There were also a number of areas where both those opposed and those in favour agreed.
This was mainly related to the issue of DMEs who worked on their own with no
administrative support and on whether it was appropriate to insist on out of hours contacts.
On the first point, both sets of respondents indicated that the rule was not universally
applicable to all DMEs as some worked adequately a present without support staff, and
there was a question of whether it could be fairly measured/applied.
Regarding out of hours contact, it was noted that having a process (e.g. email/voicemail)
to ensure communications out of hours were logged and responded to would be enough,
but there were also concerns about the impact of work-life balance on DMEs if there was a
requirement was to answer phones at all hours. It was recognised, however, that DMEs
had to be contactable beyond regular work hours but urged for this to be reasonable.
Government Action: The requirements included in rule 5 are important in providing
reassurance to unrepresented claimants that they will be able to communicate with
DMEs at a time convenient to them. However, changes have been made to simplify
the wording of the rule and to extend its accompanying rationale to reflect the
constructive comments made by stakeholders in relation to reasonableness. These
include revisions relating to out of hours contact and staffing. The point made in
relation to SLAs is noted and further consideration will be given to this issue.
Question 7: The purpose of Rule 6 is to ensure that DMEs understand their responsibility
to clearly explain the medical reporting process to unrepresented claimants, who may
have little or no knowledge of what is expected of them. Do you agree that this rule is
sufficient for this purpose or is there an alternative way for DMEs to demonstrate their
compliance with this responsibility (please explain your reasoning)?
Analysis of responses: 96 responses were received in response to this question, with 87
respondents agreeing with the rule (1 x T1 MRO; 73 x DMEs; 5 x DME/IME; 2 x IMEs; and
6 x others) and 9 disagreeing (8 x DMEs; and 1 x representative body).
9Additional Rules and Audit Process for Direct Medical Experts
Summary of comments: Of the respondents who provided comments in favour of the rule
a number noted that it would be helpful to have a written document which could be
provided to unrepresented claimants and which explained the process in layman’s terms.
Other respondents suggested that many DMEs already carry out the process described in
the rule, although others indicated that additional guidance and/or training (possibly via
accreditation modules) would also be useful.
Comments in support emphasised that this was currently established behaviour for DMEs
as part of their interaction with unrepresented claimants, irrespective of whether they are
represented or not. In fact, one respondent felt that the rule was unnecessary precisely
because this is expected behaviour for DMEs as part of GMC regulations.
Of those who indicated opposition to this rule, most focussed on complaints. It was noted
that a lack of training and/or information in the area of complaints handling was a problem
and that staff working for the DME could handle the information provision process via a
leaflet or email. It was further suggested that the complaints procedure for DMEs should
mirror the multi layered system of MROs, to ensure independent consideration is given to
complaints against DMEs.
Government Action: The provision of easily understandable information to
unrepresented claimants is an important one and it is MoJ’s view that DMEs are well
placed to explain the key aspects of the medico-legal system. The new Official Injury
Claims system will include specific guidance on the PI claims process, including on
medical reporting, but this does not exempt DMEs and their staff from a role in
ensuring that unrepresented claimants are fully informed. This rule will be
implemented as drafted, but additional contextual information to help DMEs in this
area has been added to the supporting rationale (including on complaints).
Representative bodies can also help support unrepresented claimants as well as their
members in this area. For example, the Association of British Insurers have previously
developed guidance for their members and for all claimants on the claims process7.
MoJ recommends that other representative bodies representing health professionals
consider replicating this approach by working with their members and issuing
consistent industry guidance to member organisations. Such guidance would be
helpful and could also be made available more widely to support unrepresented
claimants.
7 https://www.abi.org.uk/globalassets/files/publications/public/motor/2020/june-2020_abi-code-of-practice---third-party-assistance.pdf
10Additional Rules and Audit Process for Direct Medical Experts
Section 2: Questions on opting-in and additional
comments
Question 8: Having considered the attached new rules, do you intend to opt-in and be
audited by MedCo to provide medical reports for unrepresented claimants (please explain
your reasoning)?
Analysis of responses: 73 affirmative responses were received in relation to this
question. However, for the purposes of this analysis, only responses from DMEs/IMEs
have been considered. In total, 72 relevant responses were received (1 x IME; 3 x
DME/IME; 68 x DMEs). A further 18 DMEs/IMEs indicated they would not opt in.
A further 4 unattributed responses were received (3 stating they would opt-in and 1
confirming they wouldn’t), however these have not been counted as it is not possible to
confirm their status as a DME. An affirmative response was also submitted by an MRO but
as MROs are subject to a separate survey this has also been discounted.
Summary of comments: The majority of respondents to this question indicated they
would choose to opt-in to the process for supplying medical reports to unrepresented
claimants. Comments supporting this decision generally noted that were happy to do so
due to their expertise and experience. However, a number of respondents indicated that
they would opt-in, but there were caveats attached to their decision. These included more
information in relation to payment options, the new rules, back office requirements, the
audit process and the volume of claims they would likely receive.
There were also some general comments which suggested it is helpful to have high
standards and safeguarding rules in relation to medical reporting. In addition, the idea of
the instructions to come from the at-fault insurer rather than from an unrepresented
claimant was also put forward. Stakeholders who indicated they would not be opting in
expressed concerns about the resources required to set up a back-office function, that it
was just too costly and time consuming to meet the required rules, or that the fixed
recoverable costs available were not adequate. Others noted that they agreed with the
rules but were just not interested in participating at this point.
Government Action: The majority of DMEs responding to this survey have indicated
that they will be choosing to opt-in to supply medical reports to unrepresented
claimants. However, MoJ notes the caveats made my respondents and we will
continue to work closely with the MedCo Board and audit team to ensure that DMEs
receive adequate support and explanation of the new rules and supporting processes
to help inform their final decision.
11Additional Rules and Audit Process for Direct Medical Experts
Question 9: Having considered the draft rules do you have any additional
comments/suggestions in relation to these rules that are not already covered by the
questions above (please explain your reasoning)?
Analysis of responses: 24 respondents provided additional comments for consideration
(1 x T1 MRO; 21 x DME; 1 x DME/IME; and 1 x representative body).
Summary of comments: There were a number of generally supportive comments
received from respondents which welcomed the revisions to the rules for DMEs, whilst the
question of payment terms was raised by 5 stakeholders. It was also suggested that a fair
portion of the medical reporting fee should be ‘ringfenced’ for medical experts. Two
respondents also suggested that MOJ or MedCo should provide additional information on
the required support services, or that they should operate them on behalf of DMEs instead.
In addition, comments were also made about exempting DMEs from the rules on back
office services if they didn’t employ anyone to help them at present and that not every
DME will be able to supply out of hours appointments. In relation to audit, it was suggested
that more information is needed, that they should be delayed by six months to allow DMEs
to decide if the volume of work meant they wished to continue and that the team designing
the audit programme should consist of at least 50% medical experts.
In terms of quality, respondents noted that standards are important and that the quality
and integrity of reporting should be monitored and protected. It was suggested that rules
will not help unless there is also a fully independent review of medical reports and that
independent evaluation should include IMEs as well as DMEs. It was also noted that as
DMEs would be able to supply medical reports to unrepresented claimants, then similar
rules and criteria as those which apply to MROs should also be applied to DMEs.
Compliance with SLAs and rules on clinical governance are important and it is
unreasonable to allow unrepresented claimants to choose between MROs and DMEs.
Government Action: The majority of points made in response to this question were
raised to reinforce comments made by respondents to earlier questions. Where
appropriate, these have already been addressed and no further changes or action are
required. The points made in relation to providing extra information and the audit
programme will be considered as part of the process for implementing the required
rule changes in advance of the implementation of the reforms. It should however be
noted that the points made in relation to experts’ fees and on restricting an
unrepresented claimants’ choice, would, in the Government’s view, be likely to
contravene competition law. As such these issues will not be taken forward.
12Additional Rules and Audit Process for Direct Medical Experts
Section 3: Next Steps
The new rules for DMEs can be found at annex a to this document. They will also be
available to download from the Gov.UK website here:
https://www.gov.uk/government/publications/medco-new-rules-and-audit-process-for-
direct-medical-experts
All DMEs intending to opt-in to undertake medical reports for unrepresented claimants,
should consider their business processes and service provision against the new rules
before contacting MedCo to schedule their audit interview. The MedCo audit team will
schedule these on a first come, first serve basis and successful DMEs will be added to the
system prior to the launch of the new service in May 2021.
The application and adherence to these new and revised rules will be monitored and kept
under review following implementation. MoJ and MedCo will consider further amendments
following consideration of evidence in relation emerging behaviours and feedback
received.
A separate equivalent survey on new supplementary qualifying criteria for MROs has been
undertaken and a response has been published. Copies of this report can be found here:
https://www.gov.uk/government/publications/medco-qualifying-criteria-stakeholder-
engagement-exercise
MINISTRY OF JUSTICE
FEBRUARY 2021
13Additional Rules and Audit Process for Direct Medical Experts
Annex A: Rules specific to DMEs authorised to
accept instructions from unrepresented
claimants
The following rules have been developed to enable DMEs to demonstrate that they have
can provide a good level of service to unrepresented claimants seeking a medical report.
Where appropriate, additional rationale for each rule has been provided below, and further
guidance will be provided prior to audit interviews being undertaken.
Rule 1: Fit and Proper Persons
DMEs must adhere to the following fit and proper persons criteria, and ensure that any
employee dealing with unrepresented claimants also adheres to these criteria:
a) Be honest, of good character, credible, and must act with integrity;
b) Be competent and capable of performing tasks intrinsic to their role, both in terms of
their core medico-legal expert duties and/or related administrative tasks;
c) Have relevant qualifications, knowledge, skills and experience necessary for the role
they undertake;
d) Enhanced certification is considered best practice, but basic DBS certification is
mandatory for all experts and key staff dealing with unrepresented claimants; and
d) Not have been responsible for, privy to, have contributed to or facilitated any serious
misconduct or mismanagement in the production of Medco or non-Medco medico-
legal reports.
14Additional Rules and Audit Process for Direct Medical Experts
Additional Rationale: Given the imbalance in knowledge, experience and power in the
relationship between unrepresented claimants and DMEs, a ‘fit and proper persons’
regime is appropriate to protect their interests. In the case of an employee of a DME,
evidence that the employee is a fit and proper person may include references from former
employers, references from professional advisers, or a review of social media profiles.
This is in line with best practice in the NHS8 and where in doubt, DMEs should contact
MedCo to discuss any concerns. It is noted that there are a range of appropriate
administrative qualifications available to employees, however DMEs will be responsible for
ensuring qualifications claimed by staff are valid and suitable for the role undertaken.
Rule 2: Audits and Accreditation
DMEs will be authorised to undertake unrepresented claimant work only upon satisfactory
completion of both:
a) an audit in the form of an assessment interview and/or an onsite audit of their
compliance with and adherence to the Rules specific to DMEs including the Rules
specific to DMEs authorised to accept instructions from unrepresented claimants. In
the event that a DME attending an assessment interview with the Medco Audit Team
fails to satisfy the audit criteria, an on-site audit may at Medco’s discretion be
arranged at a later date, and
b) the Medco Accreditation Training Unrepresented Claimant Module.
Additional Rationale: Passing an assessment interview provides reassurance that the
DME understands the roles and responsibilities that they and their staff have in relation to
providing services to unrepresented claimants. The new accreditation module will form
part of the MedCo accreditation process which is designed to ensure the quality of training
undertaken by medical experts undertaking MedCo work.
Rule 3: Data Protection
DMEs are required under paragraph 6 of the MedCo Rules to comply with all relevant
requirements in relation to duties imposed under the Data Protection Act 2018
(http://www.legislation.gov.uk/ukpga/2018/12/contents/enacted) and any additional
8 https://nhsproviders.org/fit-and-proper-persons-regulations-in-the-nhs
15Additional Rules and Audit Process for Direct Medical Experts
relevant European legislation such as the EU General Data Protection Regulation (GDPR)
(https://gdpr-info.eu/).
DMEs dealing with unrepresented claimants must be aware of and able to demonstrate
compliance with all requirements relating to the processing of personal data under Data
Protection Legislation and the requirement to treat individuals fairly, including but not
limited to the requirements relating to consent. Additional information on the application of
the GDPR can be obtained from a wide variety of sources including from:
• the Information Commissioners Office: https://ico.org.uk/for-organisations/in-your-
sector/health/health-gdpr-faqs/ and https://ico.org.uk/for-organisations/guide-to-data-
protection/guide-to-the-general-data-protection-regulation-gdpr/
• the National health Service: https://digital.nhs.uk/data-and-information/looking-after-
information/data-security-and-information-governance/information-governance-
alliance-iga/general-data-protection-regulation-gdpr-guidance
• the Health and Care Professions Council: https://www.hcpc-uk.org/news-and-
events/blog/2018/gdpr-and-hcpc-standards-six-months-on/
• the British Medical Association: https://www.bma.org.uk/advice-and-
support/ethics/confidentiality-and-health-records/gps-as-data-controllers-under-gdpr;
and
• the Chartered Society of Physiotherapy: https://www.csp.org.uk/professional-
clinical/digital-physiotherapy/data-ethics-gdpr.
Additional Rationale: DMEs will be assessed against this rule as part of the face to face
audit process as described in Rule 1. Additional links to sources of helpful information on
compliance with the GDPR rules have been provided.
Rule 4: Interactions with unrepresented claimants
DMEs must be able to demonstrate timeliness when responding to unrepresented
claimants’ questions and a commitment to treating such claimants with respect, empathy,
courtesy and professionalism. DMEs should also show an awareness of the differing
needs of potentially vulnerable unrepresented claimants.
16Additional Rules and Audit Process for Direct Medical Experts
Additional Rationale: Compliance with this rule will demonstrate an understanding of how
to engage in a sensitive way with unrepresented claimants and that DMEs and their staff
know how to deal with the differing needs of individuals. Consideration could also be given
to ensuring staff training/qualifications on customer services and obtaining external
certifications e.g. ISO9001 (2015 and successor versions).
Rule 5: Resources and Delivery
Whether they employ staff or not, DMEs must demonstrate they have the resources and
structure necessary for operational delivery of the unrepresented claimant service on a
consistent and stable basis. Including the ability to:
• be contactable at times when unrepresented claimants may wish to pursue
their claims, which may be outside normal office hours; and
• operate across multiple channels to cater for different unrepresented
claimants’ communication preferences and needs (e.g. if vulnerable or not
have web access).
DMEs should have robust end-to-end customer service systems, including sufficient
resources (people, processes and technology). DMEs are personally responsible for their
dealings with unrepresented claimants and will be held accountable for any interactions
they have with the instructing claimant as well as those by their staff or any outsourced
customer service providers.
DMEs opting-in to undertake unrepresented claimant work must be compliant with all
MedCo Rules. They are also expected to be willing to accept instructions in relation to soft-
tissue and (where applicable) non-soft tissue injury claims from represented and
unrepresented claimants as an operational norm.
Additional Rationale: Unrepresented claimants may have different working pattern which
could restrict their ability to engage with their claim during office hours. DMEs should be
able to demonstrate that they have considered this and have sufficient systems or
capability in place to ensure that they also receive a good service, including an option of
communicating through multiple channels. This may require an effective messaging
process to be in operation and some responses/conversations may need to be made
outside normal working hours. This does not mean however, that DMEs must be available
24/7 or that office phones must always be answered at any time outside normal hours.
17Additional Rules and Audit Process for Direct Medical Experts
Rule 6: Provision of information
DMEs must be able to verifiably demonstrate how they will provide unrepresented
claimants with transparent, accurate, timely and up-to-date information, in plain English,
about:
• their process for producing medico-legal reports, especially the consultation
procedure and what the claimant’s roles, responsibilities and rights are in this
process;
• the contact details and the different communications channels they offer; and
• their service standards and how to make complaints, if necessary, about the
DME and to initiate a dispute resolution process.
Additional Rationale: Unrepresented claimants may not have a good understanding of
the medico-legal process or be aware of what they need to do and when they need to do
it. It is important that all information and communications provided to unrepresented
claimants uses easily understandable language and is available in an accessible format.
DMEs are responsible for ensuring that an unrepresented claimant understands the
process of arranging and attending an examination, including what the claimant needs to
do and when. This includes clearly explaining the unrepresented claimant’s rights to
challenge as well as what the consequences are if they miss their appointment etc.
It is also important that DMEs can demonstrate how they will explain this and that they
have an effective complaint handling mechanism in place. If DMEs fail to address the
claimant’s complaint to his/her satisfaction, the claimant should have the process for how
to report the DME to MedCo clearly explained to them. A complaints system does not
need to be overly complex, but should be clear, fair and proportionate to the size of the
practice.
18Additional Rules and Audit Process for Direct Medical Experts
Contact Details
Further copies of this response and the original stakeholder engagement paper can be
obtained by contacting the Whiplash Reform Team at the address below:
Civil Justice and Law Policy
Whiplash Reform Team
Ministry of Justice
10th Floor, 102 Petty France
London SW1H 9AJ
Email:whiplash-reform-team@justice.gov.uk
This report and other associated documents are also available at:
https://www.gov.uk/government/publications/medco-qualifying-criteria-stakeholder-
engagement-exercise
Alternative format versions of this publication can be requested from the Whiplash Reform
Team using the contact details shown above.
Complaints or comments
If you have any complaints or comments about the engagement process you should
contact the Ministry of Justice at the above address.
19© Crown copyright 2019 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
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